On June 26, the U.S. Supreme Court, in in a rare act of support for people instead of for corporations or religions, invalidated all state laws that prohibit same-sex marriage. The Court’s ruling in Obergefell v. Hodges holds that states must issue marriage licenses to same-sex couples and must recognize such marriages if they take place in other states, thereby eliminating the last state holdouts and granting same-sex couples the legal and economic rights granted to other married people. It was a swift and stunning victory for the gay rights movement, which is now celebrating a very special Gay Pride weekend.
In finding state laws that prohibit gay marriage to be unconstitutional, the Court relied on the “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution, adopted by Congress in 1868 to eliminate the vestiges of slavery. Those clauses have been employed over the years to expand a variety of civil rights by re-naming them constitutional rights. However, the Court failed to broaden its ruling beyond marriage to prohibit other kinds of discrimination against LGBTQ people.
The decision exalts the traditional “values” of being married and emphasizes the rights of children to be free of the stigma of having unwed parents. We congratulate plaintiffs’ attorneys for crafting this leap for human rights in acceptable reactionary terms concerning the virtues of an institution that has actually oppressed women and children for millennia. And apparently, the Court isn’t concerned that 40 percent of American children are born to single mothers and that about 30 percent of those families live in poverty; the Court doesn’t find poverty to be unconstitutional.
The ruling undoubtedly reflects a changed U.S. culture in which LGBTQ people are now widely “accepted,” even though they are still victims of openly-expressed verbal and physical gay-bashing and discrimination. Transgendered people are still endangered all the time, especially youth. Until very recently, gays and lesbians faced legal discrimination in the military and nearly everywhere else. Many people attribute this cultural shift to the effects of the Gay and Lesbian Liberation Movement, which brought so many people out of the closet that now everyone knows she has a gay relative or friend and knows that person to be just an “ordinary person”–the devils have shed their horns. In fact, so quickly have the marriage laws been changing that only 14 states still prohibited same-sex marriage at the time of the Supreme Court ruling.
The gay movement of the past few decades was clearly inspired and influenced by the Civil Rights and Women’s Liberation Movements of the 1950s, 60s and 70s. Ideas about freedom are infectious, and when an oppressed group rises up, it adds new dimensions to the concept of freedom for everyone. So with the gay movement, as it fought not only in the courts but in the streets, beginning with the battle against the police who were beating patrons at the Stonewall Inn bar in 1969—now celebrated as the first time that gays fought back. The life-and-death necessity for gays to organize in order to obtain medical care for people with AIDS was another big impetus to the gay movement.
Revolutions and counter-revolutions
The day after the decision, Rachel Maddow of MSNBC declared exuberantly, “The fight for marriage rights is won and over!” But she probably spoke too soon. The Court’s vote in favor was 5 to 4, and right-wing spokespeople gave no sign of letting up in their opposition. There will likely be campaigns for Congress to overturn the decision and for new state laws designed to hobble it. Meanwhile, much more is going on in in the LGBTQ struggle than getting married, including fights against prevalent job and housing discrimination, litigation over businesses’ “right” to refuse to serve gays on the grounds that to do so violates the business’ freedom (oh, the horror of requiring a bakery to sell a wedding cake with two men on top!), and the desperate need for strong anti-bias criminal laws that are actually enforced by police and prosecutors.
We can expect many more years of campaigns by anti-gay politicians, churches, and right-wing organizations on all these issues. After all, only the day before this ruling, the Court upheld major portions of the federally-guaranteed health insurance law, the Affordable Care Act known as “Obamacare,” for the second time. Yet leading Republicans vowed to continue their attempts to repeal it. The House of Representatives has voted to modify or repeal it 50 times since it was passed in 2010, and Republican leaders say their attempts will continue.
Gay people have been fighting publicly for civil rights for only a few decades, and this legal victory came about relatively quickly—just recently, it had seemed impossible. In fact, people celebrating at the Gay Pride march today, one after another and of all ages, told the press, “I didn’t think I’d see it in my lifetime.”
The speed in legalizing gay marriage is especially startling when you consider the utter failure of all branches of government to eliminate centuries-old forms of discrimination based on race and gender. African-Americans still suffer every day from the effects of slavery 150 years after it was outlawed. Blatant killings of African-Americans, especially young people, by both police and civilian racists, have dominated the headlines day after day for the entire past year. The last week’s news has been filled with the massacre of nine people in their church in Charleston, South Carolina, by a white racist. Little has changed over recent years for African-Americans, whose constitutional right to life seems not to matter.
Then there is the persistence of discrimination against women. Probably no mass movement in history changed the culture and laws of a country as quickly as did the Women’s Liberation Movement of the 1960s and 70s–nor did any other movement suffer such a rapid reversal in the decades following its legal victories. Women as well as racial minorities are continually losing the gains they had won in abortion and other health care rights, in laws against wage and employment discrimination, and in other areas of non-equality; the laws we fought for have been systematically dismantled or simply unenforced.
“Right can never be higher than the economic structure of society and its cultural development conditioned thereby.” –Karl Marx, Critique of the Gotha Program, 1875
While we always supported the Gay and Lesbian Liberation Movements, when the fight for gay marriage first began, it seemed bizarre to some of us feminists: why would anyone want to be part of an institution that has so long oppressed women? In fact, the Supreme Court finds the Constitutional right to marry based in a reactionary view of marriage’s importance and virtues. Justice Kennedy’s majority decision speaks eloquently about the unity of two people, conflating love and marriage and ignoring the traditional view of two-sex marriage which is “two people become one and that one is the husband.”
Moreover, the decision finds marriage to be a keystone of the nation’s social order, and concludes, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” We agree that everyone should have the same civil rights and liberties and the economic advantages of marriage if they choose, but we disagree that marriage is the highest ideal of love! And we most definitely reject the state-imposed social order and the state’s ideals and institutions!
We are not vulgar Marxists nor any sort of economic reductionists, but we can’t help wondering why gay legal rights were able to progress so rapidly over the past few years. A possible answer may be that they do not threaten the “fabric of society” in the same way as the prospect of racial and gender equality does. Of course, we don’t mean that same-sex unions were not long considered a threat to society, but rather, that they do not actually threaten the economic and social relationship of capital to workers, whereas racial and gender equality do threaten it.
Workplace and housing and policing and lending and all kinds of discriminatory treatment by society’s rulers against various sections of the ruled have served to create new divisions and to maintain old divisions within the working class. This is a great benefit to the capitalist system–in fact, vital to the system’s survival. So-called perks are awarded to white males to encourage them to go peacefully to their jobs every day and to be grateful that, even if their work and pay are lousy, they do not have the additional burdens of African-American men or of women or gays. This tactic of “divide and conquer” is the oldest trick in all rulers’ books, readily deployed to sustain a disunited labor force.
We strongly disagree with the common feminist trope that all men, or all white men, benefit from racism and sexism. On the contrary, “divide and conquer” hurts all working people because it helps employers to keep wages as low, and thereby profits as high, as they can be. In other words, men don’t earn good pay because women earn less; rather, both are paid the minimum that employers can get away with paying. In fact, lower-paid workers depress everyone’s wages by posing the threat of replacing the higher-paid workers. You don’t have to be a Marxist to understand these simple facts—but it helps, and moreover, it suggests a better approach to thoroughgoing social change than does riling against a “greedy one-percent.”
To get back to the Supreme Court decision: we are very glad that gay people now have more legal rights, but legal rights won’t dismantle the exploitative, racist, alienating, sexist, violent, homophobic, cruel, war-mongering conditions under which we all live in this capitalist world. A united class of wage-workers, armed with ideas of a better world, can fundamentally change the system; no change in law can do it.